French v. Fuller

Wilde J.

delivered the opinion of the Court. It was tes tified by one of the witnesses, that the tenements, for the entering of which the defendant is charged as a trespasser, were, at the time, occupied by under-tenants ; and the fact we understand is admitted ; and if so, it seems quite clear, that this action cannot be maintained. To maintain an action of trespass quare clausum for an injury done to real property, the. plaintiff must prove, that he has the actual possession of the property ; for, though the freehold of the land may be in him, he cannot maintain the action, if the land, at the time of the trespass, was in the lawful possession of another. It is not denied that this is the general rule, but it has been argued, that when land is in the possession of a tenant at will, the rule is not applicable, as the possession of a tenant at will is the possession of his landlord ; and the case of Starr v. Jackson, 11 Mass. R. 519 , is relied on in support of this position. But it is very clear, that the decision in that case is no authority in support of the present action. It was decided in that case, that trespass quare clausum fregit lies for the owner of land in the possession of his tenant at will, where the injury af fects the permanent value of the property, as the cutting down of trees, destruction of buildings, and like acts. There could be no doubt, that for such an injury the owner of the land would be entitled to a remedy; the perplexing doubt in that case, was as to the form of the action, whether it should be trespass or trespass on the case. In the case under consideration, no such question can be raised ; for upon the facts argued no injury has been done to the freehold, and the plaintiff is not entitled to an action in any form. All that appears by the statement of facts, is, that the defendant had been on the premises at sundry times, exercising acts of ownership, *107 such as demanding rent and letting some of the tenements to the tenants in possession. It does not even appear, that the entry was tortious, so that the tenants could support an action of trespass. But however this may be, no actual damage was done to any one ; and, most certainly, the plaintiff cannot maintain an action for the mere disturbance of the possession. In the case of Little v. Palister, 3 Greenleaf, 6, the defendant entered upon land in the possession of a tenant at will, and threw down a fence erected by the tenant for his own convenience ; and it was held, that the landlord could not maintain trespass, or any other action, for the wrong, the injury being wholly to the rights of the tenant. We think the decision in that case is unquestionably correct, and, consequently, that this action cannot be maintained.

I think it proper to add, to prevent misapprehension, that it must not be inferred, that the judgment of the Court would be different, if this case had been in all respects similar to that of Starr v. Jackson . Since the decision of that case, the law in respect to the rights of tenants at will has been materially changed. By the Revised Stat. c. 60, § 26, it is enacted, “that all estates at will maybe determined by either party, by. three months’ notice in writing, for that purpose, given to the other party.” A similar provision was contained in a previous statute.

Since this change of the law regulating the manner of terminating estates at will, the possession of a tenant at will before notice, and for three months after, can in no sense be held to be the possession of the landlord. The tenant has not only the possession, but also the right of possession, and, in this respect, he stands on the same footing as a tenant for a term certain. The landlord’s remedy, therefore, for an injury to his freehold or reversionary interest by a stranger, is by an action on the case and not by an action of trespass quare clausum fregit.

Plaintiff nonsuit.